Criminal Justice and Court Services Bill

– in the House of Lords at 8:35 pm on 2nd October 2000.

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House again in Committee.

Clause 7 [Functions of inspectorate]:

Photo of Lord Dholakia Lord Dholakia Liberal Democrat 8:49 pm, 2nd October 2000

moved amendment No. 43:

Page 4, line 22, leave out subsection (4).

Photo of Lord Dholakia Lord Dholakia Liberal Democrat

This amendment deals with the powers of the Secretary of State in relation to the inspectorate. The clause provides that,

"The Secretary of State may give directions as to--

(a) the information to be given in the report and the form in which it is to be given,

(b) the time by which the report is to be given".

It appears that fairly draconian powers are being assumed by the Secretary of State. The clause establishes the role and functions of the revised national probation inspectorate and the clause gives the Secretary of State power to determine what information is given in the report, the form in which it is given and the time for publication. That is a severe restraint on the independent role of the service. There is no similar restraint on the family court welfare service which is also established in this Bill. Why is there a sudden request for more powers for the inspectorate?

We understand that the prisons inspectorate liaises on the timing of reports and that Ministers have the power of veto if security is affected, but it has never been used. If it were to be exercised, Ministers must give reasons to Parliament. If the Secretary of State can veto information the process is liable to political interference. For example, will a report which is critical about the failure of the Secretary of State adequately to resource aspects of the service's work be omitted because it is harmful to the case of the government of the day? We seek an explanation from Ministers on the exact circumstances in which the clause will be used and argue that the powers of the Secretary of State should be similar across governments and work on the principle of the independence of the examining body. I beg to move.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

The effect of this amendment would be to remove the ability of the Secretary of State to request the report of an inspection of a local board be given within a particular timescale and for the report to contain specific information and to be in a particular format. Parliament already has the means to call Ministers to account for the exercise of their responsibilities under the Bill.

I must reject this particular amendment. Earlier we were criticised for not being more precise about the way in which the inspectorate might work; the issues it might cover and those which it might want to draw to the attention of the Secretary of State. The function of the inspectorate is to provide timely reports on a regular basis on the performance of each and every local board. I argue that it is reasonable to seek such information on a consistent basis in a prescribed format within a given timescale.

The clause continues the current arrangements for the inspection of the service. I believe that the noble Lord, Lord Dholakia, would agree that they appear to have worked well in the past. If accepted, this amendment would allow reports to be prepared on what can best be described as an ad hoc rather than a regular cyclical basis and in a similar style and format. It would make it difficult for the Secretary of State to assess the performance of the service nationally and identify any problem areas that needed to be addressed. We believe it is entirely reasonable that the Secretary of State should be able to specify the particular aspects of the service that he wants the inspectorate to look at and how and when it should report back to him.

We believe that the production of timely reports on a regular basis to a format which ensures that all boards match particular standards and levels of performance is very important. This amendment would undermine that important principle. I trust that with that explanation the noble Lord is able to withdraw his amendment.

Photo of Lord Dholakia Lord Dholakia Liberal Democrat

I have no difficulty with the explanation offered by the Minister. I have no problem about the form in which the information is to be given or the timescale within which the report must be provided. My difficulty lies with the information to be given in the report which the Secretary of State is to determine. What is the use of having an independent inspectorate when the Home Secretary can determine what information he requires? If the inspectorate is to be independent it must be allowed fully to explain precisely what it is looking at and produce a report to which the Home Secretary must respond. I hope that the Minister will give thought to what I have said and perhaps look at it. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Seccombe Baroness Seccombe Conservative

moved Amendment No. 44:

Page 4, line 27, at end insert ("within two months of its receipt").

Photo of Baroness Seccombe Baroness Seccombe Conservative

We appreciate that under Clause 7 as drafted there is a requirement for the Secretary of State to lay the report of the inspector before each House of Parliament, but it does not state when. We believe that a timescale should be included on the face of the Bill. Without such a safeguard it would be easy for the report to lie in a drawer and not see the light of day for many months due to more urgent business. This amendment is a confidence-building measure for the Probation Service. We urge the Minister to accept what we regard as a modest and helpful amendment. I beg to move.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

The intention behind the amendment is to be helpful. I am grateful to the noble Baroness for raising the matter in this way. As has been acknowledged, Clause 7 requires that each inspection report should be submitted to the Secretary of State who in turn must lay a copy before each House of Parliament. The amendment would require the Secretary of State to do that within a given period. In relation to the previous amendment I argued that it would be right that inspections and reports upon them should be carried out on a fairly cyclical basis. We seek a balance. We need regular reporting with some flexibility in the production of those reports and the way in which they are drawn to the attention of Parliament.

The Government have no intention to delay the presentation to Parliament of reports by Her Majesty's Chief Inspector of Probation. I believe that Parliament would properly call us to account if we attempted to do so or interfered in any way with that process. We have always been, and continue to be, committed to open scrutiny of our public services. We believe that the inspectorate has an honourable tradition and valuable independence. The amendment unnecessarily seeks to go further than the requirement on other inspectorates. That is an important comparison to be made.

We believe that the amendment places us in an unnecessary straitjacket. If we adopted the amendment no doubt the noble Lord, Lord Dholakia, would accuse us of taking draconian action. We believe that we have the balance about right. I trust that with that explanation the noble Baroness is able to withdraw her amendment.

Photo of Baroness Seccombe Baroness Seccombe Conservative

I am extremely disappointed by the Minister's response. The amendment seeks to add only two or three words to the Bill. One would have thought that the amendment would be acceptable. There is flexibility in that the amendment refers to the receipt of the report within two months. We all want transparency. Parliament would not even know that the report existed. I believe that because the amendment is so small yet important the opinion of the Committee should be tested.

On Question, Whether the said amendment (No. 44) shall be agreed to?

Their Lordships divided: Contents, 28; Not-Contents, 55.

Division number 3

See full list of votes (From The Public Whip)

Resolved in the negative, and amendment disagreed to accordingly.

Clause 7 agreed to.

[Amendment No. 45 not moved.]

Clause 8 [Support services]:

[Amendments Nos. 46 to 48 not moved.]

On Question, Whether Clause 8 shall stand part of the Bill?

Photo of Lord Dholakia Lord Dholakia Liberal Democrat 9:08 pm, 2nd October 2000

This clause deals with support services. It gives power to the Secretary of State to privatise probation support services such as administration, secretaries or information technology. Over recent years, administration has become an integral part of the probation team. Roles have increasingly become blurred. For that reason it is valuable to have one employer and one set of negotiations for both sides. There is a danger that privatisation of parts of the Probation Service could lead to fragmentation and communication problems.

The privatisation of prisons has always been controversial and the private sector has succeeded in keeping down costs only by offering lower wages, employing fewer staff and imposing poorer pensions. We believe that privatisation of one aspect of the probation estate would be a source of conflict and disharmony.

I suggest to the Minister that a better way of seeking to ensure better "value for money" would be through modern managerial techniques: investing in staff; effective information technology; and adequate and regular training for all staff. I hope that the Minister will agree that this would be a better way of dealing with the issue, rather than simply to consider privatisation.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

This measure in Clause 8 has been included to make it possible for the Secretary of State to make arrangements for support services for local boards to be undertaken centrally by the staff, or to be contracted out. He would be able to do this only if by so doing, better efficiency or better value for money could be achieved.

It could be of particular use where economies of scale could be achieved by grouping boards either regionally or nationally and letting a contract for the provision of a service. The nature of the services which might be covered is not tightly defined in the clause. The services are defined only as those services which are required by local boards in the exercise of their functions. They could range from cleaning services through to payroll provision or staff training.

This clause is not designed to cover the contracting out of core activities involved in the supervision of offenders. I should like to make that point clearly understood. Local boards may contract out the delivery of such services under the provisions in Clause 5(2), but in that case the board concerned, rightly, would retain responsibility for ensuring that the arrangements it put into place were appropriate and that the contract which had been let had been fulfilled by the contractor.

This clause does not concern the wholesale privatisation of the Probation Service or of the support services that form a part of it. It concerns making practical, sensible, good value for money and efficient services work in the best interests of the service.

Clause 8 agreed to.

Clause 9 [Approved bail hostels, etc.]:

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

I must tell the Committee that if Amendment No. 49 is agreed to I cannot call Amendment No. 50.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office 9:15 pm, 2nd October 2000

moved Amendment No.49:

Page 5, leave out lines 2 to 5 and insert ("premises in which accommodation is provided--

(a) for persons granted bail in criminal proceedings (within the meaning of the Bail Act 1976), or

(b) for, or in connection with, the supervision or rehabilitation of persons convicted of offences.

( ) References in any enactment to an approved bail hostel or approved probation hostel are to be read as references to premises approved under this section.").

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

The amendment will remove distinctions between categories of hostels and will enable all approved hostels to accommodate, where appropriate, offenders who are subject to drug treatment and testing orders or licence conditions, or those who, while not subject to statutory supervision, require an enhanced level of supervision in residential accommodation to assist their rehabilitation.

The proposed changes in the clause will provide greater flexibility in accommodating those who would benefit from being housed in approved accommodation. This could be particularly beneficial for those serving drug treatment and testing orders, who will be undergoing treatment as directed by the courts. The supportive regime in approved hostels increases the likelihood of such unstable offenders completing the treatment element of their orders, thereby increasing the effectiveness of sentencing and improving public protection.

Hostels have an excellent record in dealing with difficult and dangerous offenders. They enable many of those who would otherwise have problems completing their periods of licence or community sentence to do so. The structured regime and framework of staff support provide the optimum opportunity for offenders to reconsider their criminal behaviour and begin the important rehabilitation process. For offenders, approved hostels represent a stepping stone back into society; for the wider public, they are a key plank in ensuring that those offenders who potentially pose a risk to public safety are properly supervised and managed rather than being left to their own devices within the community.

We want to build on the success of approved hostels by increasing their flexibility and levels of usage and, in doing so, to provide the prospects of increased public protection and reduction in re-offending, particularly amongst those on whom the court has imposed a drug testing and treatment order. I beg to move.

Photo of Baroness Blatch Baroness Blatch Conservative

I am a little puzzled. I have listened to the explanation given by the Minister and I have obviously missed something. As it stands, the Bill states that:

"The Secretary of State may approve--

(a) bail hostels,

(b) community rehabilitation hostels,

(c) other premises in which accommodation is provided for use in connection with the supervision or rehabilitation of offenders".

That is entirely consistent with what the Minister said.

But that is to be removed from the Bill in favour of,

"premises in which accommodation is provided--

(a) for persons granted bail in criminal proceedings (within the meaning of the Bail Act 1976), or

(b) for, or in connection with, the supervision or rehabilitation of persons convicted of offences".

I cannot see the distinction between the two. What is wrong with the Secretary of State approving bail hostels? They have a definition in law; we know that there are clauses in the Bill which define what they are used for. The distinction between the two is not very clear from what the Minister has said.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

Perhaps the noble Baroness does not understand what we are trying to achieve. We are trying to create a generic hostel which will give greater flexibility and enable us to maximise the use of the hostels estate. That is the important point.

I do not see the difficulty. I am not sure that there is a difficulty; it is perhaps a difficulty more in the imagination than in the fact. We are trying to make sure that things work well, that we get best value and best benefit from what we have got, and that we get maximum flexibility in provision. It simply merges categories in order that we do not need to approve the same premises in three different ways. That is all it does. It provides us with the flexibility for this generic type of hostel.

Photo of Baroness Blatch Baroness Blatch Conservative

Is the Minister saying that there will not be such a thing as a bail hostel in future; that it will only be premises which have a number of different uses? Is that what the noble Lord is saying?

On Question, amendment agreed to.

[Amendment No. 50 not moved.]

Photo of Baroness Blatch Baroness Blatch Conservative

moved Amendment No. 51:

Page 5, line 8, after second ("any") insert ("reasonable").

Photo of Baroness Blatch Baroness Blatch Conservative

We are still on the subject of hostels. The Probation Service will be in some despair at what the noble Lord has just said, in that it is concerned about the name. Now, we understand, these are to be just "premises"; they do not appear to have a formal name. This is accommodation for anyone with a conviction, anyone who has been charged in the past. It is accommodation with or without supervision, if one takes all the answers that the noble Lord has given to the points raised during the course of our debates.

These amendments relate to Clause 9. They relate to the funding for hostels, and to applying a kind of constraint. There needs to be some financial control in terms of the expectations of what is coming down from the Secretary of State, and also in terms of what is actually provided by the Secretary of State, and proper monitoring of it.

Following the words,

"under this section or the payment is made with a view to their approval", in Clause 9(3), my Amendment No. 52 would provide a new sub-paragraph:

"The total expenditure incurred by the Secretary of State under this section in any period of 12 months shall not exceed such sum as may be specified in a resolution of the House of Commons, unless a further resolution of the House of Commons determines otherwise"-- in other words, that the actual amount ought to be within limits set by Parliament. The noble Lord has intimated that that is the view of the Government; namely, that the commitment should not be open-ended. The amendment is about financial control. It is also about the proper use of funds--in other words, value for money. When this debate took place in the Commons, I noted that a large number of examples were given where the control over finance was not as strong as it might have been. I hope that these amendments will provide that. I must again declare my disappointment that the Probation Service was not listened to as regards the name for the hostels. I beg to move.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

As I said earlier, we are trying to create a generic hostel type, provide greater flexibility and maximise the use of the hostels estate.

The Opposition amendments appear to aim to retain the name of probation and limit the Secretary of State's discretion in making payments for hostels. I am not clear whether that was the intention of the amendments, but plainly it would be their effect.

Amendment No. 51 would limit the amounts that the Secretary of State could pay towards the maintenance or development of approved hostels to what would be "reasonable".

Amendment No. 52 would limit the overall amount that could be spent on the maintenance or development of hostels to a sum approved by the House of Commons.

The use of the word "probation" as proposed in Amendment No. 50 would do nothing to clarify the purpose of the premises. We see no reason to fetter the power of the Secretary of State to spend money on approved hostels.

Amendments Nos. 51 and 52 do not have a useful effect. They leave open the judgment as to how much expenditure might be deemed "reasonable". There is no good reason why expenditure on approved hostels should be treated differently from other expenditure on the national probation service by making it subject to special approval by the House of Commons.

I cannot see that any useful purpose is served by the amendments. I understand that there is perhaps a desire to cling to historic names, but in this instance it does not help us in re-shaping and re-fashioning the service; nor do I think that the attempts to restrict expenditure in the way suggested in the amendments serves a useful purpose either. I therefore urge noble Lords to reject Amendments Nos. 51 and 52.

Photo of Baroness Blatch Baroness Blatch Conservative

I shall not argue with the points made by the noble Lord on my second two amendments. In regard to his response to my reference to the naming of the hostels, I am now totally confused--probably not because of the Minister but because of my own understanding of the Bill and of the amendments.

It was my understanding that bail hostels were to be renamed "rehabilitation hostels". Do I understand now that they are just to be "premises"? The noble Lord said that our suggestions would cause great confusion in the community as regards the understanding of the purpose of these hostels. If he went into a market square and asked people what they thought of probation hostels, I am sure that he would find that they have some understanding, some perception, of a probation hostel. However, those people would not understand that they are just premises which might be used for the purpose of supervision or for rehabilitation.

If we are to improve local understanding of the purpose of these premises, we must recognise that the location and the running of them are most sensitive issues in the community. The more we can do to improve understanding as to what they are about and what they are doing, the better. I wonder whether I have misinterpreted what the Minister said. Do these places now have no name other than "premises"?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

I believe that the noble Baroness is creating more difficulty over this than is perhaps necessary. We are trying to achieve flexibility here in the use of the probation estate. Trying to pin down precisely what a particular premises may or may not be called will not help us a great deal. We are not saying that there should be a statutory name for each particular type of premises. I take note of the important point about the need to communicate more about what hostels do, or attempt to achieve, in the community. That is a valid point. However, I do not believe that that should necessarily have a bearing on the naming of those premises.

There will not be a statutory name for such premises. We are trying to ensure that we make good use of the hostels for the benefit of a range of people who fall within the criminal justice system, whether they be on bail, serving a community sentence or on licence. I am not sure that my response will help the noble Baroness in her confusion, but I have tried. If she still remains confused at the end of our discussion, I shall be quite happy to provide her with further clarification in writing.

Photo of Baroness Blatch Baroness Blatch Conservative

I am having some fun in my mind about possible conversations that could take place in a high street. One lady meets another and asks her where she is going. She says, "I'm going to the board". "What board?" "Well, it's just the board. It used to be the probation board, but it is now called the board". This would, of course, be a local board. The next two ladies in a high street could be discussing a "premise". One says, "There is a planning application to build a premise or to use a premise". The other asks, "What do you mean by a premise?" "It is just a building". "What is the building?" "Well, it might have a variety of uses". I cannot believe that this situation will improve the understanding of the work of the service.

There is a common understanding out there about the Probation Service; there is also a common understanding about hostels and their uses--for example, bail hostels, rehabilitation centres, and so on. At least they have a name that conveys the activity that takes place in the hostel and what it is. I do not whether the Government are rather slyly--I was about to say "shyly", but I do not think that they are shy--hiding behind what such places might be called when it comes to location. In other words, until they are built and occupied, or taken over as a "premises" with other uses and occupied, no one will know what is going on. People will find out by stealth that it is, for example, a hostel for people on bail, for sex offenders or for rehabilitation purposes.

The Minister has dismissed these points, but they are important considerations when it comes to promoting an understanding and an awareness of the work of the service. I am only sorry that the noble Lord thinks that such confusion is acceptable and that my concerns are unnecessary: all we need to do is trust what he said. Everything will be all right and the public will fully understand. I do not believe that they will.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office 9:30 pm, 2nd October 2000

I believe that the noble Baroness invites me to respond. I shall try to offer further help. I do not think that there is any argument that the terminology is important. Descriptions can be confusing. I consider that the term "hostel" does not necessarily convey a great deal. It could be a hostel for homeless people or for those who suffer from alcohol abuse. The point we are trying to establish is that accommodation which forms part of the Probation Service estate should have a flexible use.

There will, of course, be the opportunity to name particular premises. The intended use of premises would have to be described if they were to be the subject of a planning application and that would have to be made plain to the public. The noble Baroness makes a good point; namely, that it is important to have a wide understanding of the use to which the accommodation we are discussing is to be put. At present most hostels contain more than one category of offender. Therefore to call a building a bail hostel, or a hostel for those on licence, or a hostel for those on community service, does not necessarily convey a great deal to the wider public.

Names will be given to the premises we are discussing and we shall endeavour to make them as descriptive as possible. However, to commit that to statute would not be helpful, as we might then be constrained as to the nature of description we might use. I hope that I have clarified matters and I hope that the noble Baroness feels a little happier with my response. If that is not the case, I shall try to keep her informed as we proceed through the Bill.

Photo of Baroness Blatch Baroness Blatch Conservative

I look forward to the applications being submitted. Even when that occurs, it will still not be possible to give a definitive name as the premises will still be used for a number of different purposes. The simplest possible solution is the term "probation hostel" as that covers community service, people on remand and people who are using the premises for purposes connected with the criminal justice system. However, I am not getting anywhere. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 52 not moved.]

Clause 9, as amended, agreed to.

Clause 10 [Default powers]:

Photo of Baroness Blatch Baroness Blatch Conservative

moved Amendment No. 53:

Page 5, line 14, leave out from ("it") to end of line 16.

Photo of Baroness Blatch Baroness Blatch Conservative

In moving Amendment No. 53, I wish to speak also to Amendments Nos. 54, 55, 56 and 57.

These amendments seek to ensure that it should not be possible for the Secretary of State to institute a management order on a whim. A management order should be instituted as the result of a report that recommends such an order or suggests that a local board is failing. That restricts the right of the Secretary of State to intervene on a whim or at any time that he chooses. The Minister may say that certain situations may be so urgent that the Secretary of State needs to intervene quickly. However, I still believe that the inspectorate should be used as an arm of the Secretary of State to confirm that a situation is sufficiently serious to justify the Secretary of State issuing an order.

Amendment No. 55 states:

"A management order shall be effective for such period (not greater than 12 months)".

That is a long period anyway and a period within which improvements may occur or events may lead to a board having to be replaced.

Clause 10(5) states:

"The power to revoke a management order is exercisable at any time when the Secretary of State considers it necessary ... to revoke it".

Amendment No. 56 seeks to add to that sentence the words,

"during the specified period mentioned in subsection (4A)".

In other words, we know that the order can be revoked at any time. The Secretary of State must have that freedom and flexibility. However, if the order is revoked and the Secretary of State is satisfied that matters are back on an even keel, short of exceptional circumstances arising which would again warrant emergency intervention, he should not make another management order within 12 months. Stability will be all important. I have experience with schools. When they are improving, the last thing wanted is constant intervention. That destabilises organisations. It is important that some stability should be introduced.

I seek not to labour the point. However, it is important that there is some order in the system and that the sometimes necessary intervention is undertaken on the basis of proper advice from the inspectorate. I beg to move.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

Amendments Nos. 53 to 57 would make the default powers in Clause 10 inoperative. Amendment No. 57 prevents a management order made under Clause 10 from being renewed by requiring a 12-month gap between the arrangements unless, in the opinion of the Secretary of State and the chief inspector, the circumstances have changed in such way that the making of a further order is warranted. It may not be right to make a management order hastily within three months of a formal inspection. It may be better to allow a board time to improve, or to agree an action plan for improvement and demonstrate whether it can follow it.

Providing good value for money is an important part of a board's remit. It is a specific failing which should be subject to being tackled through the powers under Clause 10 if it is clear that an alternative arrangement can offer better value to the taxpayer.

A management arrangement which could not last for more than 12 months and then could be renewed only if the Secretary of State and the chief inspector agreed that circumstances had changed sufficiently to warrant the making of a further order would be impractical. No contractor would want to take on such a short term contract with no scope for renewal. No one could be expected to turn around a failing service in such a short period of time.

I believe that these are unwise amendments. They would not serve a great and useful purpose. They could inhibit the way in which boards operate. I trust that the noble Baroness will feel able to withdraw the amendment.

Photo of Baroness Blatch Baroness Blatch Conservative

I am sorry the Minister did not take up the point about providing some stability in fairly difficult situations. If it takes rather more than 12 months to bring round a service, the problem is very serious. There are many default powers in the Bill which allow the Secretary of State to replace the board, or even the chief executive. It is important that a service is not allowed to run for a period of more than 12 months while not performing to the level and giving the quality of service expected of it. That is the reason for the inclusion of the 12 month period. The Secretary of State should use some of his other powers.

No one suggests that nothing can happen within those 12 months. If the Secretary of State is satisfied that the service is back on track, he can revoke the order. If he is not satisfied and believes that the situation is becoming worse, he can invoke his other powers.

If, within a 12-month period, a service improves to the extent that no further intervention is required, it seems right to give it some breathing space. When a service has suffered the indignity and trauma of having failed and has made the effort to improve, 12 months is a relatively short period in the special circumstances allowed for in these amendments.

I am sorry that the noble Lord interpreted the amendments as he did. I am clearly not getting anywhere with them. I think that the edict has gone out that no amendments should be accepted. Therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 54 to 58 not moved.]

Clause 10 agreed to.

Clause 11 agreed to.

Schedule 2 [Children and Family Court Advisory and Support Service]:

Photo of Baroness David Baroness David Labour

moved Amendment No. 59:

Page 50, line 36, at end insert--

("( ) the establishment of committees which include persons from the local community, courts and court users, the function of which is to advise area managers on the provision of local services and local recruitment.").

Photo of Baroness David Baroness David Labour

We now move to the part of the Bill dealing with CAFCASS. I am speaking to Amendments Nos. 59, 61 and 62. In the same group is Amendment No. 60, in the name of the noble Earl, Lord Listowel.

A good deal was made on Second Reading of local accountability. The noble Baroness, Lady Prashar, said:

"I particularly welcome the fact that the Bill will result in a stronger national identity and consistency for probation services, together with strong local accountability and service delivery".--[Official Report, 3/7/00; col. 1316.]

I shall enlarge a little on local accountability.

Paragraph (4)(a) says that regulations may provide for

"the establishment and functions of committees".

I am asking for a local area advisory committee. That would be of significant benefit to CAFCASS in facilitating good links with communities, courts, court users and other service users. Such committees could include membership from local community and court user groups and would be in a position to give crucial advice to area managers on particular local issues as they affect the delivery of local services. That is particularly important if CAFCASS aims to be an exemplar organisation in the way in which it deals with anti-racism and diversity. Local input is very important.

Amendments Nos. 60 and 61 refer to training and qualifications. Chief probation officers are concerned that the necessary training and qualifications are put in place to facilitate the recruitment of people from minority ethnic groups. The current profile of the three organisations whose functions will be taken over by CAFCASS does not reflect the diversity of this country's population. It is vital that arrangements are put in place early in the life of CAFCASS to encourage applications from minority ethnic groups. The chief probation officers are in favour of training that is locally available but centrally specified to meet national academic and professional standards. That is an important point.

Amendment No. 62 is about the supervision of staff. The probation officers believe that the nature of the work that CAFCASS undertakes requires clear lines of accountability on standards and the quality of service. The Association of Chief Officers of Probation believes that a managed service is essential. The Waterhouse report supports that view, clearly identifying the importance of the supervision of practitioners. The probation officers know that there is an intention to establish 22 area managers and they hope that the new arrangements establish proper line management within the structure, so that all staff dealing with children are properly supervised. That is another important point.

There are only a few people in the Chamber at the moment, but I hope that they will support my amendments. I beg to move.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

I shall speak to Amendment No. 60, standing in my name, and to Amendment No. 62, standing in the name of the noble Baroness, Lady David.

A recognised social work qualification is currently considered the barest minimum requirement for guardians ad litem. It is possessed by the majority of family court welfare officers. Soon, social workers engaged in work with families and children will be required to have a recognised qualifying award in child and family work. I submit that CAFCASS officers who undertake public law cases should have at least the same qualifications as the social workers whose actions they scrutinise. In Committee in the other place the Minister, Jane Kennedy, proposed to introduce a trainee grade of CAFCASS officers.

CAFCASS officers with responsibility for working before the court have a demanding and challenging task. My amendment would ensure that there was never a risk of juniors or unqualified trainees undertaking such work. It would prevent the dilution of the service in the face of financial or other pressures. It would ensure that CAFCASS officers working before the court had sufficient social work experience and analytic capacity to be a credible and trenchant advocate for the child.

I move on to Amendment No. 62. With great respect to the noble Baroness, Lady David, I question her amendment regarding supervision. Given the complexity of the task of reconciling the two very different management structures of the family welfare court officers and the guardians, it would be premature to prescribe the management arrangements in primary legislation. I believe that that is best left to regulation.

By way of illustration of the difference between those two organisations, the approximate ratio of managers to officers in north London in the guardian service is 1:70; that is, one manager to 70 officers. In the family welfare court service it is 1:10; that is, one manager to 10 officers. Yet both services enjoy good reputations.

Photo of Baroness Hanham Baroness Hanham Conservative 9:45 pm, 2nd October 2000

My name and that of my noble friend Lady Blatch are also attached to the amendment in the name of the noble Earl, Lord Listowel. Briefly, I support what he has said.

The amendment to which he has spoken fills the gap left in the current paragraph 5(2). As he said very cogently, the problem created by the formation of this new, very inaptly named service is to provide a uniformity of qualification which will ensure that the new family court officers have sufficient experience and expertise in dealing with families and, most particularly, as the noble Earl said, with children.

All guardians ad litem and most court welfare officers currently hold a social work qualification. However, the new clause put forward by the noble Earl would ensure that future recruits to the service come from a similar background. In time--and it is intimated in the Bill that this will happen--there may also be developed specific qualifications for this service. However, the social work background would give assurance of appropriate qualifications and standards.

It is necessary to have officers with experience which enables them to identify quickly the children who are vulnerable and emotional, to assess their needs, to take their views, conduct interviews with other people related to the case and then, most importantly, to present a cogent and helpful report to the court. That requires confidence, maturity and experience, as well as academic ability-- something which practically all guardians ad litem hold at the moment, as well as the court welfare officers.

The new service will also need people at various levels of management, and a career structure for them will be important. Therefore, I support the second and third paragraphs of the noble Earl's amendment.

Photo of Lord Bach Lord Bach Government Whip

As my noble friend Lady David said, we now come to the CAFCASS part of the Bill--the Children and Family Court Advisory and Support Service, to give its full title. That will be set up as an executive, non-departmental public body accountable to my noble and learned friend the Lord Chancellor. As Members of the Committee will know, CAFCASS will bring together for the first time the work of three impressive but disparate groups: the guardian ad litem and reporting officer panels, the Family Court Welfare Service and the children's work of the Official Solicitor.

The bringing together of those groups into one organisation has, it is fair to say, been generally and widely supported by all the political parties and, perhaps more important, by experts in the field. I am happy to be able to tell the Committee that the President of the Family Division, who has a real concern in these matters, to whom I have had the pleasure of speaking about the establishment of CAFCASS, has given me express permission to tell the Committee how much she supports the setting up of that organisation. Of course, not only are the Government grateful for that view but they are grateful also for the general support for the setting up of this body.

The consequences of setting up CAFCASS will be, we believe, a more child-focused service, pooling the experience and expertise of the three worthwhile services which I have mentioned. It will be a more professional service which highlights and disseminates best practice. Secondly, it will ensure continual professional development of staff, which is important in relation to these amendments, so that the staff are up to date with new developments--for example, the consequences of the recent Court of Appeal decisions on cases involving domestic violence. Thirdly, it will provide a better service for the courts based on the above points and the greater adaptability and flexibility of a national service whose staff will increasingly be able to work across the current professional boundaries between court welfare and guardian work. Fourthly and lastly, it will be a more visible and accountable service, being a national service with a voice in the development of policy and a service open to independent inspection and audit and accountable to Parliament, through the Lord Chancellor, for its performance.

I turn to the amendments. I deal first with Amendment No. 59 which my noble friend Lady David moved. CAFCASS will need to have open and transparent arrangements to ensure that there is local dialogue with its stakeholders; namely, its users and other agencies in the family justice system. There are existing, if imperfect, arrangements to allow CAFCASS to work with stakeholders locally. We believe that the way to approach the matter is to build and improve on what is already there.

The most obvious existing structure is the network of family court business committees--FCBCs--based at care centres around the country. Their role is to monitor the handling of children cases through local courts, including family proceedings courts, and to discuss issues of local concern. Those discussions include matters such as recruitment difficulties and ways of improving administrative arrangements so as to maximise available resources. GALRO panel managers and the FCWOs are already members of those committees and it is envisaged that CAFCASS will take on the role which GALRO and the FCWOs have played.

In addition to those committees, there is a network of parallel family court fora which included wider representation, including mediators and family groups. We recognise that there are problems with that system, not least that insufficient notice can be taken of the family perspective. We plan to address the problems but we believe that having the requirement for a further set of committees on the face of the Bill will not in itself improve arrangements. We believe that on balance, although of course we see the purpose behind Amendment No. 59, it could restrict the options available.

I turn now to Amendment No. 60 in the name of the noble Earl. We acknowledge, of course, the importance of having skilled, experienced and trained staff in CAFCASS. If it is to be the outstanding service that everyone wants it to be and it meets both the needs of children and the courts, it is imperative that officers of the service should have the knowledge and skills appropriate to the particular task.

Having said that, at once I must say that we have reservations about the amendment itself. We recognise that most staff who will transfer to CAFCASS have social work qualifications, but to set out the entry requirements on the face of the Bill seems to us to go too far.

We believe the first part of Amendment No. 60 would fetter the discretion of the service to recruit from the widest possible pool of potential staff and reduce its capacity to ensure that staff reflect the diversity of society. Importantly, it would also call into question the position within CAFCASS of the case workers of the Official Solicitor, the majority of whom are not qualified social workers but whose work is highly valued by the senior members of the judiciary. Of course, they too will be part of the staff of CAFCASS.

Noble Lords are concerned that CAFCASS should maintain or improve existing professional standards across the services that it will provide. The Government share the same concern, which is why, as part of the development of CAFCASS, work is going on specifically on training, professional accreditation and professional development in the new service. It will be important to ensure that staff undertaking particular tasks are properly equipped to do so. In the same way, staff who receive training will have to work under supervision, as they currently do in the Family Court Welfare Service. We do not believe it is necessary to restrict entry to the service in the way that the first part of the amendment of the noble Earl would do.

The second part of the amendment leads us to these conclusions. Paragraph 5 of Schedule 2 remits to secondary legislation the provision as to the qualification, experience and training to be required of officers of the service. It seems to us that that is the proper way to deal with those issues, and we shall bring forward proposals in due course.

Clearly, staff will need to be appropriately trained. Those who will rely on the service of officers of CAFCASS should expect nothing less, but we do not believe it adds anything to the legislation to deal with those matters in the broad way proposed.

We also believe that the third part of the amendment of the noble Earl is properly dealt with under paragraph 5 of Schedule 2. The regulations that will be created under the schedule will apply to both those in management as well front-line staff. As I mentioned, we believe that that is the proper way to deal with the issues.

I turn to the second amendment of my noble friend Lady David, Amendment No. 61. We fully recognise the importance of training for CAFCASS but again we have reservations about the precise amendment. We do not believe that it is helpful to place on the face of the Bill details of how training should be organised and delivered. As I explained earlier, this paragraph of Schedule 2 remits to secondary legislation the provision as to the qualification, experience and training to be required of officers of CAFCASS. We feel that that is the proper way to deal with those issues and we shall bring forward proposals.

The amendment seeks to specify how training should be organised and delivered. Clearly, some training must be made available locally. However, more specialist training--by way of example on Munchausen's Syndrome by Proxy--may be better delivered from a few centres of expertise. We believe that the effect of the amendment will be to create some inflexibility in the service's ability to consider options for developing and securing the necessary training for its staff.

I know that my noble friend is concerned that CAFCASS should maintain or improve existing professional standards across the service that it will provide. She is further concerned that CAFCASS should be an organisation that reflects the diversity of the population that it serves. We share those concerns which is why, as part of the development of CAFCASS, work is going on specifically on training, professional accreditation, professional development and diversity in the new service.

Clearly, the staff of the new service will need to be appropriately trained and have opportunities for professional development that I have mentioned. The courts, the inspectorate and others will expect nothing less, but we do not believe that the amendment is the right way to deal with it.

Regulations will provide the framework to establish the necessary qualifications, experience and training required. We feel it would be wrong to constrain the board's ability to decide what is appropriate training.

In relation to Amendment No. 62, we appreciate my noble friend's concern that those who work with children are supervised appropriately and are accountable for their work. However, we are not convinced that that would be achieved by requiring directions to say that. We need to look at how the service will work and the framework surrounding its operation and that of its officers. It is our intention--we will come to this in Amendment No. 79--that the Protection of Children Act 1999 and the protection of children provisions in this Bill will apply to officers of CAFCASS so that those employees of the service who have unsupervised access to children are subject to checks before employment starts.

The creation of CAFCASS provides a unique opportunity to develop a single organisation covering England and Wales which will be transparent and accountable. Officers of the service will work within national standards. The service will be subject to independent inspection and the Rules of Court define how many CAFCASS practitioners should undertake their work. Within those rules an important and frequently used practice is that directions hearings offer courts further opportunities to direct how specific aspects of the case should be considered. We believe that those arrangements provide a significant and robust framework to ensure the probity and effectiveness of the officers of CAFCASS.

Those will be the tools on which the management of CAFCASS can build to ensure professional development and quality of officers of the service. It seems to us that the proper way to deal with issues of supervision and accountability is through national standards, Rules of Court, inspection and the role of management in professional development and quality. We are not complacent. Paragraph 9 of Schedule 2 seeks to have reserve powers if there is concern about the quality of work in CAFCASS. But to seek to define how that may be achieved on the face of the Bill would be inflexible and limit the development of the service.

We are grateful to all those who have spoken on these amendments. I hope that my response has gone some way to meet their concerns.

Photo of Baroness Hanham Baroness Hanham Conservative 10:00 pm, 2nd October 2000

Before the noble Lord sits down, perhaps I can refer him back to the amendment of the noble Earl, Lord Listowel. My worry in relation to the way the situation is developing is that our service currently has qualified social workers. I refer particularly to the family proceedings court in which, as the noble Lord will be aware, I sit as a magistrate. But we are moving from one service into another. Currently the social work qualifications guide the standards of those who carry out the work with children who then come before the court.

However much the Government may intend to develop a new qualification and new standards, they will not be introduced within the next six months to one year. In that time recruitment will either have to be limited to those who are coming in from the court welfare offices and the guardian ad litem--though I accept the point about the Official Solicitor. If recruiting is done from outside, there will not be an appropriate standard because one will not yet have been developed. My concern therefore is the interim period before an appropriate standard and qualification is developed for the new combined service. Therefore there should be a clear definition of the minimum standard and qualification, particularly for those appearing before the family proceedings court.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

I should have said that I am grateful to the noble Baronesses, Lady Blatch and Lady Hanham, for their support on this amendment. I am grateful also to the noble Lord, Lord Bach, for his detailed response. He may wish to correct me but I believe that the case workers of the Official Solicitor's office were required until recently to have a social work qualification. They are small in number in relation to the general manning of the operation. Would it be too much to ask that all CAFCASS officers should have a qualification in social work?

Photo of Lord Bach Lord Bach Government Whip

I am grateful for the contributions of the noble Earl and the noble Baroness, Lady Hanham, with her experience of court work. The number coming from the Official Solicitor's Department will be small in comparison with the other two services which will make up CAFCASS. I do not believe that that small number should be a reason for saying that everyone working in CAFCASS should have a social welfare qualification. It would make the organisation of the service difficult because valuable members of the Official Solicitor's staff would be prevented from transferring. That would spoil the effect.

We shall be consulting on regulations as regards qualifications and accreditation. I can reassure the Committee that CAFCASS will advertise for staff qualified in social work. That may go some way towards relieving the anxieties expressed. However, for reasons stated, we do not believe it is appropriate to place that requirement on the face of the Bill. We are not far apart in accepting the needfor high quality entrants to this important service. We are concerned that staff coming from the Official Solicitor's office should be treated as equals and accepted in the unique role they will play in the organisation.

Photo of Baroness David Baroness David Labour

I thank the Minister for his full and interesting reply. I also thank other noble Lords who have contributed to the debate, which has been interesting and important. The Minister mentioned recruitment difficulties but did not answer the point about improving the quantity of people who come from the ethnic minorities. I hope that that will be borne in mind.

The Minister said a great deal which I want to read in Hansard and consider before deciding what, if anything, should be done at the next stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 60 to 62 not moved.]

Photo of Baroness Hanham Baroness Hanham Conservative

moved Amendment No. 63:

Page 52, line 40, leave out ("prescribed persons") and insert ("any person").

Photo of Baroness Hanham Baroness Hanham Conservative

Amendment No. 63 is similar to one moved by my noble friend Lady Blatch earlier today. It is also similar to an amendment which was moved in another place where the Minister did not agree that "prescribed persons" should be changed. I am probably teaching Ministers opposite to suck eggs. But it was said that only people party to the proceedings should have the right to make the complaint. I am concerned about that definition because it is limiting.

No one would want to instigate a process that brought forward a host of vexatious litigants. However, it is our contention that many people who are not parties to the case--for example, close family members of a child--who feel that the proceedings have not been conducted properly, or that they have had an adverse result, or that for some perverse reason they have been excluded from being parties to those proceedings, should be able to make a complaint if they feel it appropriate. It should be possible to pass legislation which does not open the door to vexatious litigation.

In addition, the Bill is currently deficient in giving any formula for a complaints process, even though the schedule makes provision for one to be established. The amendment would mean that the Lord Chancellor, who will oversee the new service, would appoint an ombudsman or independent arbitrator to determine a complaint and a tribunal to deal with appeals against his decisions. We believe it is important that that process should be defined on the face of the Bill. I beg to move.

Photo of Lord Bach Lord Bach Government Whip

The noble Baroness will not be surprised if I adopt the same arguments used in another place by my honourable friend Jane Kennedy and earlier in Committee, in respect of an equivalent matter elsewhere in the Bill.

We agree that it is important to ensure that the service is required to establish and publicise a complaints system but do not believe that "prescribed person" should be replaced by "any person" because the ability to make complaints should be reserved to those who are a party to proceedings. If anyone were given the right to complain, there is a real risk that CAFCASS would face vexatious complaints from individuals or organisations hostile to the idea of the service, policy or legal framework on which it bases its reports.

As to Amendment No. 64, we agree on the importance of establishing an independent safeguard for those who feel cause for complaint with the service. For that reason, Schedule 2(17) brings CAFCASS into the remit of the Parliamentary Commissioner for Administration. We hope that deals with the concern expressed in Amendment No. 64 and that it is therefore unnecessary. Bringing CAFCASS into the commissioner's remit will provide an independent safeguard for those who feel cause for complaint with the service.

Photo of Baroness Hanham Baroness Hanham Conservative

While I am slightly more reassured in respect of the second part of Amendment No. 64, I remain concerned about the prescriptive nature of the people who will be permitted to complain. The Minister referred to the parties to proceedings but the Bill limits to three or four the number of people being able to make a complaint on the back of anything that has gone wrong. People beyond those who are parties to proceedings may feel that it would be appropriate to make a complaint. The provision needs widening beyond "prescribed persons"--unless they are extended beyond those who are parties to proceedings. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 64 not moved.]

Schedule 2 agreed to.

Clause 12 [Principal functions of the Service]:

Photo of Baroness Hanham Baroness Hanham Conservative

moved Amendment No. 65:

Page 6, line 11, after ("welfare") insert ("and interests").

Photo of Baroness Hanham Baroness Hanham Conservative

While recognising that the Children Act 1989 refers only to the welfare of the child and the existing clause would conform, that suggests that a child has only a passive role in matters relating to him or her--whereas promoting its interests suggests active involvement by the child in identifying his or her future needs and requirements.

The words "welfare" and "interests" are not totally synonymous. According to Collins Dictionary, "welfare" means "health, happiness, prosperity, well-being", and "interests" are defined as "benefit or advantage". I suggest to the Committee that both are of equal importance in assessing a child's situation and the best options for its future. To have both in the legislation will enhance the requirements under this clause. I beg to move.

Photo of Lord Bach Lord Bach Government Whip 10:15 pm, 2nd October 2000

We believe that this amendment is effectively a distinction without a difference. The intention to represent the interests of children is clear enough in the clause as drafted. The function of promoting and safeguarding the welfare of children clearly covers their interests. Unless noble Baronesses opposite can postulate a case in which something which is in the interests of a child is contrary to its welfare, we believe that the amendment is unnecessary. We intend to revise the rules of court to reflect the introduction of CAFCASS and deal with any distinction in that way by specifically addressing the different procedures in public and private law cases. On reflection, we do not believe that the amendment adds anything to the Bill. We find it difficult to envisage a situation in which the child's interest and its welfare are at odds. I am unable to accept the amendment tonight.

Photo of Baroness Hanham Baroness Hanham Conservative

Having sat through the whole of the proceedings this afternoon, I am not surprised to hear that the amendment is not accepted; that is par for the course. I should like the amendment to be accepted. I shall read carefully what the Minister said. I believe that "interest" expands very much on "welfare" and goes beyond it. It is important that that is the situation in court proceedings. I am sure that the Minister is as well aware as I am that often in court advice is received about the interests of the child, not just its welfare. It is sensible, right and proper that that should be recognised in legislation. I do not press this matter at the moment and seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 agreed to.

Clauses 13 and 14 agreed to.

Clause 15 [Right to conduct litigation and right of audience]:

Photo of The Earl of Listowel The Earl of Listowel Crossbench

moved Amendment No. 66:

Page 7, line 14, leave out ("in the exercise of his functions") and insert ("to instruct a suitably qualified lawyer").

Photo of The Earl of Listowel The Earl of Listowel Crossbench

The purpose of my amendment is to ensure that the current high standard of representation of children in public law proceedings continues. Concern about the diminution of that high standard has been expressed by Barnardo's, the National Association of Guardians Ad Litem and Reporting Officers and several noble Lords at Second Reading. Currently, the rights of a child are represented by a solicitor from the children's panel and the child's welfare interests are represented by its guardian ad litem. These two professionals, with their two distinct and complementary disciplines, have been highly effective in ensuring proper representation of the child. There should be no risk of false economies being made on the tandem representation arrangement under CAFCASS. Mistakes in decisions about long-term arrangements for troubled children are tragic for those children and extremely costly for society.

If the purpose of the clause is to preserve the right of audience of official solicitors that should be articulated clearly on the face of the Bill. It is vital that the right of children to the best tandem representation is not vulnerable to erosion by future administrations. I beg to move.

Photo of Baroness Hanham Baroness Hanham Conservative

I support the amendment. As the noble Earl demonstrated, the clause has two deficiencies. First, it appears to override the accepted practice that in public law cases--for example, when the state is involved--the guardian ad litem will always appoint a solicitor or legal adviser to represent the child who is the subject of the proceedings. That is accepted practice. It is accepted in the Children Act 1989 but it is not reflected in this part of the Bill. The Bill could be misconstrued as meaning that in public law cases it is not necessary for there to be a legally qualified representative for the child. That is a major deficiency.

Secondly, if there is a contested case in private law cases, where the child is a party he or she should be separately represented by a qualified lawyer who is not associated with the court welfare service. The court welfare officer is an adviser to the court, not a quasi-lawyer. The roles of both in the proceedings are different. It is interesting that in the 1998 consultation paper the question of non-legally qualified people having the right of audience in court was not raised as an issue. What was put forward was the limiting of the amount of representation to part of the proceedings or to advice, not to exclusion.

This is one of the most important issues in the Bill. In our view, the clause as it stands is fundamentally flawed.

Photo of Lord Bach Lord Bach Government Whip

In relation to Amendment No. 66, I must stress straightaway and put it clearly on the record that it is not the Government's intention that the tandem model of guardian and legal representation in public law cases should change. It works and is well respected. Clause 15(1) appears as it does because it is needed to replicate the work of the Official Solicitor. The amendment would mean that it could not do that. However, we are willing to give reassurances that this power would be used only in the small number of cases that currently fall to the Official Solicitor.

CAFCASS is being created by bringing together the three services to which I have referred. If we are successfully to achieve that we have to ensure that CAFCASS will have the full range of powers and responsibilities that all the existing services--not just one or two--have. That is the purpose of Clause 15. The noble Earl is concerned that the clause does not restrict the right to litigate to legally qualified officers of CAFCASS. However, I shall attempt to persuade both the noble Earl and the noble Baroness that that is not the intention behind the clause and that the clause will not undermine the tandem model which currently operates in public law cases.

If we did not have the provision in Clause 15, CAFCASS would not be able to reflect the work of the Official Solicitor. It is based on Section 90 of the Supreme Court Act, which allows the Official Solicitor to conduct litigation regardless of whether he is a solicitor or barrister. We anticipate that 21 caseworkers, four divisional managers and three family lawyers will transfer to CAFCASS from the Official Solicitor. It will be necessary for all those people to have the right to conduct litigation and a right of audience. Currently, a small number of experienced caseworkers regularly attends directions hearings in private law cases before district judges. They also attend directions hearings in public law cases. The case workers undertaking that work do so under the direction of a qualified lawyer. In transferring the work of the Official Solicitor to CAFCASS, we think it would be wrong to lose that experience.

The practice of non-lawyers conducting cases and appearing in court on preliminary matters is not wholly unusual. For example, probation officers are able to prosecute cases where there is a breach of a community order, and regularly do so in courts up and down the land.

Of course, as happens now, when Official Solicitor cases reach the court for trial in serious matters--we all know of such cases that have been reported recently in the newspapers--their qualified lawyers take over and deal with those cases. They will continue so to do. It is not our intention that this clause should undermine the tandem model of GALROs and solicitors working together to ensure that the child is properly represented. The tandem model works well and we want to retain it. It is enshrined in the rules of court that once a guardian is appointed, they then engage a lawyer to legally represent the child. The rules will need to be updated to take account of the emergence of CAFCASS, but we intend to preserve the tandem model in the updated rules. It would not be possible, therefore, for CAFCASS to require guardians transferring into the new service to take on the role of the child's legal advocate.

That last point has been a matter of concern to those representing GALROs; namely, that they will be required to appear in court as advocates for the child. I can give to the Committee the reassurance that that will not change. It would not be right if it were to change. In public law cases the child is made a party to the case and has the right to legal representation. Article 6 deals with the right to a fair trial. There would be clear difficulties in establishing that CAFCASS had complied with this requirement if it were to require children in public law cases to be legally represented by an inexperienced officer. Clause 15 will enable CAFCASS to be responsive to the specialist nature of the work undertaken by the Official Solicitor, as is currently the position.

I hope that the noble Earl will accept my reassurance that there is nothing sinister in Clause 15. It is not intended to undermine the tandem model or to force GALROs to undertake litigation. It ensures simply that CAFCASS is able to act as the Official Solicitor does now.

In a small number of cases, officers of CAFCASS will undertake litigation, as would the staff of the Official Solicitor now. When they appear in court as litigants, it would be inappropriate for them to be subject to cross-examination where this was their only involvement in the case. However, if they were not advocates in the case, they would be open to cross-examination in a broader manner than is the case now. Currently, I believe that family court welfare officers are not normally cross-examined as regards their reports, unlike guardians, who can be cross-examined. It is our intention that anyone who is not an advocate in the case itself will be open to cross-examination. It is not usual in court proceedings for an advocate to be cross-examined without extremely good and obvious reasons. I therefore invite the noble Earl to withdraw Amendment No. 66.

Photo of Baroness Hanham Baroness Hanham Conservative

Before the noble Earl rises to make his response, perhaps I may press the Minister further. The problem with Clause 15 is that it does not say what the Minister intends it to say. That makes for poor legislation. What it states is,

"to conduct litigation in relation to any proceedings in any court".

That is prefaced by:

"The Service may authorise an officer".

If the only officers being referred to here by the Minister are those from the Official Solicitor under Section 19 of the Supreme Court Act, then it seems to me that it would be sensible to say so. Otherwise, the question is left open as to whether the tandem proceedings are being interfered with or whether children who are parties in private law cases are in fact stopped from receiving the legal representation to which they are entitled by substituting an officer to fulfil that role.

I hope that the Minister will be kind enough to take this away and reflect on what I have said. This is such an important part of the Bill. Furthermore, it is extremely important to ensure that children do receive proper and qualified legal representation. It would be quite wrong if the legislation were to lead anyone to misunderstand those circumstances.

The Minister went on into an area that we had not covered--that is, the cross-examination of advocates. Now that he has mentioned the matter, perhaps I may comment on it. It is obviously clear that where an advocate is acting for and on behalf of the child there should be no question of that advocate being put into the witness box. That would leave the child unprotected at that stage. In public proceedings, of course, the guardian ad litem--now the CAFCASS representative--would be put in that position, not the child's representative.

But that is the second part of the issue. It is the first part in regard to representation that I would ask the Minister to look at again.

Photo of Lord Bach Lord Bach Government Whip 10:30 pm, 2nd October 2000

I can give the noble Baroness an assurance that I shall look at it again. I should make clear our position in regard to the principle of the separate representation of children in all private law cases: we do not support the principle of separate representation of children in all private law cases. There may be cases where that is appropriate, but it would be wrong to use the Bill to introduce the idea of universal independent representation in that kind of case. The noble Baroness will know well that there rarely is separate representation for the child in divorce cases. CAFCASS will provide representation for the children in many cases.

The law of England and Wales provides for the views of the child to be conveyed to the court by a number of means, including via the Official Solicitor, via the court welfare officer and via the guardian ad litem as appropriate. In making any decision about the upbringing of a child, the court is required to treat the welfare of that child as paramount. I repeat that in public law cases the position that has obtained up until now will be continued--and that, of course, is now on the record. But I shall go back and look again at the points made by the noble Earl and the noble Baroness.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

I am grateful to the Minister for his reassurance. I am also grateful to the noble Baroness, Lady Hanham, for her eloquent pursuance of this most important point. She clearly emphasised the importance of this tandem representation; that it should not be allowed to be eroded or put into a situation where it might be eroded in a few years time. Obviously there needs to be clarity. I hope that the Minister will think a little further on this and perhaps differentiate and make quite clear that the clause is designed for the Official Solicitor. I thank the noble Lord for his response and I shall consider his words further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 67 not moved.]

On Question, Whether Clause 15 shall stand part of the Bill?

Photo of Baroness Hanham Baroness Hanham Conservative

I indicated at an earlier stage that we would oppose Clause 15 standing as part of the Bill. On the understanding that there will be careful reflection on the matters I have raised, with the possibility of that part of the legislation being amended to make clear what we have discussed today, I shall not oppose Clause 15 standing as part of the Bill. I accept fully the assurances that have been given; I appreciate that they have been recorded in Hansard. However, I am well aware that very few people read Hansard after the legislation has been formed and therefore it is probably better to have it clarified in the legislation. Under those circumstances, if the Minister can give me that assurance, I shall not oppose Clause 15 standing part of the Bill. I look forward to seeing what the Minister comes back with at a later stage.

Photo of Lord Bach Lord Bach Government Whip

I have already given the noble Baroness that assurance about the matters that concern her in Clause 15.

Clause 15 agreed to.

Clause 16 [Cross-examination of officers of the Service]:

[Amendment No. 68 not moved.]

Clause 16 agreed to.

Clause 17 [Inspection]:

Photo of The Earl of Listowel The Earl of Listowel Crossbench

moved Amendment No. 69:

Leave out Clause 17 and insert the following new Clause--

:TITLE3:INSPECTION

(" . It shall be the duty of the Social Services Inspectorate--(a) to inspect and report to the Secretary of State on the performance by the Children and Family Court Advisory and Support Service, and the officers of the Service, of their functions, and

(b) to discharge, in connection with those functions or with related functions of any other person, such functions as the Secretary of State may from time to time direct.").

Photo of The Earl of Listowel The Earl of Listowel Crossbench

This amendment stands also in the name of the noble Baroness, Lady Blatch.

It has already been the job of the Social Services Inspectorate to examine the work of guardians ad litem. SSI inspectors often have recognised social work qualifications and experience. They are certainly from a culture of social work or social work research. They are therefore well-equipped to judge whether the service is working in the interests of children and families. Their appointment as the inspectorate would signal clearly that the welfare of children and families is at the heart of CAFCASS's work. Indeed, I very much hope that the Government will use the expertise of the Social Services Inspectorate continually to elevate the standards of CAFCASS's work.

The magistrates' inspectorate, on the other hand, does not have expertise in the area of child and family welfare. Its focus is on administration and property management. Surely, it would be in the best interests of children and families if the SSI were charged with the inspection of CAFCASS and was then empowered to draw on the valuable experience of the magistrates' inspectorate as necessary. I beg to move.

Photo of Baroness Hanham Baroness Hanham Conservative

I support the noble Earl in his comments. The important point is that there should be an inspectorate of the service. We are dealing with the question of who should carry out the inspection. I agree with the noble Earl, Lord Listowel, that the Social Services Inspectorate is probably more appropriate. From the look on the Minister's face, I am not sure that he agrees with me. I support the amendment.

Photo of Lord Bach Lord Bach Government Whip

The noble Baroness's use of the word "probably" caused me to look quizzically at her.

We have considered carefully all the options before deciding that our preference is for Her Majesty's Magistrates' Court Service Inspectorate to be the inspectors in this case. That body understands the courts, has established links with the Lord Chancellor and, importantly, covers both England and Wales. We are conscious that the inspectorate will need to supplement its existing knowledge in the first instance, so enabling it to become properly equipped to carry out the inspection function.

There is a Social Services Inspectorate for England and a Social Services Inspectorate for Wales. Therefore, there would be two inspectorate services inspecting one organisation. I remind the Committee that CAFCASS will cover both England and Wales. We believe that, rather than incorporate this cumbersome framework on the face of the Bill, it would be better to have one lead body responsible and encourage it to draw in expertise as and when necessary.

I acknowledge the concerns that noble Lords have raised. However, we believe that the MCSI will work closely with the Social Services Inspectorate and other bodies to develop its knowledge as regards children and family matters.

Undoubtedly Her Majesty's Magistrates' Court Service Inspectorate will need to work closely with those other organisations as well as the HMIP to gain experience in this field. There are pre-existing, clear reporting lines between the MCSI and the Lord Chancellor. As the inspectorate for CAFCASS, the MCSI has the potential to be very flexible thus enabling the inspectorate to develop expertise and keep up with any future developments of CAFCASS. Therefore, although we recognise the real feeling behind the amendment, I am afraid that we must oppose it.

Photo of Baroness Blatch Baroness Blatch Conservative

It was not my intention to intervene on this amendment because my noble friend is more than ably coping with the subject. However, I have to express wry amusement at the arguments just deployed by the Minister. I have in mind his comments in relation to having two inspectorates--the Welsh inspectorate and the English inspectorate. My understanding is that the Welsh one would inspect Welsh interests and the English one would inspect English interests. Nevertheless, this is a very good example of not having very joined-up government.

We spent many hours in this Chamber arguing against the very point of having two inspectorates operating in the same field; namely, the adult learning inspectorate and Ofsted in education. We were not even talking about operating in two different countries; we were talking about operating and inspecting in the same establishments. We put forward all the arguments about how cumbersome and difficult that was and pointed out the problems that would arise as a result. The Minister actually used those arguments this evening in his response and said that it would not be advisable to have two inspectorates and that it would be better to have one. As I said, I have only spoken to express wry amusement.

Photo of Lord Bach Lord Bach Government Whip

The noble Baroness will undoubtedly be pleased that we have come round to her point of view.

Photo of The Earl of Listowel The Earl of Listowel Crossbench

I thank the Minister for his reply, which I shall consider. The argument that England and Wales are separate in this context seems a little strange to me. Surely it is important to place the emphasis on the well-being of families and children in this new service. One must not lose that focus under the new arrangements. I shall, therefore, carefully consider what the noble Lord said, but I may well return to the matter. On that condition, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 17 agreed to.

Clause 18 [Definitions]:

[Amendment No. 70 not moved.]

Photo of Lord Dholakia Lord Dholakia Liberal Democrat

moved Amendment No. 71:

Page 8, line 31, leave out ("local") and insert ("probation").

Photo of Lord Dholakia Lord Dholakia Liberal Democrat

This amendment relates to definitions. I believe that the noble Baroness, Lady Blatch, has repeatedly drawn our attention to this particular issue, so I do not need to labour the point any further. If one looks at the clause, it says:

"'New Employer' means a local board or the Service".

However, the "Old Employer" is defined as a,

"local authority, [or] a probation committee".

The problem that I have is with the term "local board". There is ample confusion as it is about that term, without bringing the word "probation" into the equation. However, the Minister has already conceded that when the service is expanded in relation to local areas the geographical situation, together with the word "probation", will be included.

The Central Probation Council has been in touch with me about this particular confusion. There ought to be someone in the Civil Service who could sit down, look at the Bill and actually sort out the matter so that everyone who reads it will understand what it means. At the end of the day, the success of the probation committees in local areas will not depend on what you direct centrally; it will depend on the efforts of local people and the identity shared with local areas. If local people cannot even identify the matter in terms of their own concern, we shall be wasting our time.

Even at this late hour, perhaps I may suggest that if the Minister were to accept this very simple suggestion to identify not simply "local boards" but also "local probation boards", that would make a lot of sense. I beg to move.

Photo of Baroness Thornton Baroness Thornton Labour

I wish to speak to Amendment No. 73 tabled in my name and that of the noble Lord, Lord Habgood. We share a concern regarding the future of family mediation which has prompted this amendment. I should declare an interest here as someone with a long association with NCH Action for Children, which, together with National Family Mediation, is a major voluntary-sector provider of family mediation support services, mainly through its partnership with the Probation Service at local level. There is a great danger that for want of adequate funding and transitional arrangements these services are now in jeopardy. The legislation that we are considering imposes a kind of planning blight on them, if I can put it that way. The purpose of the amendment is to enable assurances to be sought concerning the maintenance of adequate funding for family mediation and related services from the present time and through the period of transition until the new arrangements are fully implemented.

As I said on Second Reading, the problem--this situation has not yet improved--is that some of the probation partners who fund this service are either reducing their funding or making grants on a "spot" basis year on year. For example, in the case of NCH Action for Children, which provides seven services for areas including the whole of inner London, Manchester and most of Wales, the reduction in funding of £36,000 and not being able to plan beyond March 2001--because no contracts have been issued beyond that date--means that they will shortly find themselves unable to sustain services in some of these areas of great need.

These are not great sums. The problems involve administration, but the loss of these services would mean that the new CAFCASS--which is supported by many children's organisations--would have to recreate them. Instead of being able to build on and develop existing services, we would squander the work and skills of National Family Mediation and NCH Action for Children in this field. For want of attention to detail in the transition we could lose what already exists and engender more expense and more work as a result. Time is now short. I hope that my noble friend the Minister will be able to offer me some hope.

Photo of Lord Habgood Lord Habgood Crossbench 10:45 pm, 2nd October 2000

I support what the noble Baroness has said. I declare an interest as patron of National Family Mediation. Our main concern is for the children who will suffer if these services collapse, as they will unless there is some firm assurance that funding will be available. We are talking about minuscule sums. I worked out that the sum involved would be enough to keep the Dome going for about eight hours.

Photo of Lord Dholakia Lord Dholakia Liberal Democrat

I have already spoken but I hope that the Minister will not object if I speak again. I forgot to mention that Amendment No. 77, which stands in my name, concerns the commencement of the operation of the service. Is it not right and proper that no scheme should be made under Clauses 19 or 20 for the transfer to the service of any property or employee before April 2002, as stated in the amendment? I hope that the Minister will comment on that.

Photo of Lord Bach Lord Bach Government Whip

Some government amendments are attached to the group we are discussing which I shall discuss first. I shall then discuss Amendments Nos. 71 and 77. Finally I shall deal with what many may consider to be the most important amendment of the group; namely, Amendment No. 73 spoken to by my noble friend Lady Thornton.

This group of amendments concerns matters relating to the transfer of property and liabilities and the creation of the national probation service and CAFCASS. Government Amendment No. 76 is a drafting amendment. The amendment makes the clause clearer with regard to the consultation procedures that may be required as part of a scheme to transfer staff from an "old employer" (such as a probation committee) to a "new employer" (that is, either a local board or CAFCASS).

The original clause refers simply to "prescribed requirements" of consultation. The new wording as applied by this amendment makes clear that any directions about consultation will be set out by the appropriate Minister (either my noble and learned friend the Lord Chancellor or my right honourable friend the Home Secretary).

Amendment No. 78 is a drafting amendment. The amendment makes the clause clearer with regard to the consultation procedures that may be required as part of a scheme to transfer staff from a local board of CAFCASS to a new employer, for example on the contracting out of a particular function of the board or service.

I referred to Amendment No. 79 earlier. This new clause will ensure that the Protection of Children Act 1999 will apply to CAFCASS and its officers. It will further ensure that those organisations which perform functions on behalf of CAFCASS will be governed by the Protection of Children Act 1999.

That Act is designed to afford greater protection to children who may be put at risk of harm. The Act places a duty on childcare organisations to refer to the Secretary of State individuals who have been employed in a childcare position where they have been dismissed on ground of misconduct which harmed a child or placed a child at risk. Individuals are still covered even if they retire or resign before they are dismissed. Childcare organisations which are intending to employ someone are placed under a duty to ensure that the proposed employee is not kept on the list held by the Secretary of State. If that person is found to be on the list then the childcare organisation is not to employ them.

As officers of CAFCASS, and those performing functions on behalf of CAFCASS, are likely to have unsupervised contact with children we think that it is important that these measures designed to protect children apply.

This new clause makes it explicit that CAFCASS and organisations performing CAFCASS functions will be regulated by the 1999 Act. In addition we want CAFCASS to be under a duty to refer individuals who are dismissed for misconduct which harmed a child or put a child at risk of harm. The effect of the amendment is that CAFCASS, its officers and organisations performing functions on behalf of CAFCASS will be governed by the Protection of Children Act 1999.

Amendment No. 80 is a consequential amendment relating to Amendment No. 49. In due course I shall move those government amendments.

I do not think that the noble Lord who moved Amendment No. 71 expects me to say much more about it. We covered the issue in detail earlier. Our response has not changed in what seems the many hours since that debate.

I do not think that the noble Lord, Lord Dholakia, expects me to accept Amendment No. 77. We do not think that there is any reason to suggest that the proposed implementation date of 1st April next year cannot be met. We are consulting widely about the implications of the Government's intentions and response from staff at all levels has been positive bearing in mind that change is not always universally and instinctively welcomed.

I turn to Amendment No. 73. I thank my noble friend for raising the issue. At the same time I pay credit to the National Family Mediation and NCH Action for Children and other voluntary groups for the important work they do in the field of family mediation. The Government strongly support the principle of family mediation. We are keen to encourage its greater use to resolve family disputes. CAFCASS will have a continuing interest in supporting out of court alternative dispute resolution services. Out of court mediation has a valuable role to play in helping parents agree arrangements for their children following divorce and separation.

Clause 12 gives CAFCASS powers to make grants and Clause 13 allows CAFCASS to enter arrangements with other organisations and people to deliver its functions. We believe that this gives this service the full range of powers to continue to fund mediation work in the future. However, we appreciate that that does not address the real concerns that my noble friend Lady Thornton and the noble Lord, Lord Habgood, have raised about the genuine funding problems that providers are facing.

We want to ensure a smooth transfer of the existing partnership funding from the Probation Service to CAFCASS and to avoid money being withdrawn from current services. Clause 19(1)(b) makes provision for the transfer of liabilities to CAFCASS, which would include existing arrangements for funding mediation and support services. As noble Lords may know, the Home Office issued a circular in June asking probation committees to consider requests for new and future funding in much the same way as they have done to date. The guidance said that funding should continue beyond 31st March 2001 so that there is a smooth transfer to CAFCASS, using Clause 19(1)(b).

In the light of representations that we have received--including a meeting that I attended nearly two weeks ago with my noble friend Lady Thornton, the noble Lord, Lord Habgood, the noble Lord, Lord Bassam of Brighton and Jane Kennedy, the Minister in the Commons--Ministers at the Home Office and the Lord Chancellor's Department are writing to chief probation officers, reminding them of the importance of ensuring a smooth transfer of partnership funding to CAFCASS.

That letter has been signed by both the Ministers involved. It makes the position clear, saying:

"We want CAFCASS to be able to work with partnership organisations to develop a strategic view of need and availability of mediation of contact centre services to support its work. It will struggle to do this if contracts cease on 31 March 2001 or soon afterwards. We now urge you to ensure that funding is continued until 31 March 2002, applying the same tests as before--i.e. that services are needed, effective and provide value--to allow CAFCASS to take a strategic view about these services".

I hope that my noble friend and the noble Lord will feel that that is a clear response to the concerns that they expressed to us in that meeting. We were impressed by what was said to us and have reacted accordingly. The Government are determined to overcome the real problems that were identified. We do not want any planning blight on those very useful services in the next few months.

I hope that my noble friend Lady Thornton, who raised the matter as a probing amendment, will be satisfied with my answer.

Photo of Lord Dholakia Lord Dholakia Liberal Democrat

I have listened carefully to the Minister and I accept his explanation. I did not expect any concessions from the noble Lord, Lord Bassam of Brighton, but I thought that my friend, the noble Lord, Lord Bach, might fall for it, but he did not. I thank him for his explanation. We may come back to the issue later. I beg leave to withdraw the amendment.

Photo of Lord Habgood Lord Habgood Crossbench

I thank the Minister for the action that has been taken. We shall let him know the response of those to whom he has written. If need be, we shall come back to him for some further fallback action, should they not respond as we all hope that they will.

Amendment, by leave, withdrawn.

[Amendment No. 72 not moved.]

Clause 18 agreed to.

Clause 19 [Property]:

[Amendments Nos. 73 to 75 not moved.]

Clause 19 agreed to.

Schedule 3 agreed to.

Clause 20 [Transfer of staff]:

Photo of Lord Bach Lord Bach Government Whip

moved Amendment No. 76:

Page 9, line 28, leave out from ("any") to ("have") in line 29 and insert ("directions about consultation given by the appropriate Minister").

On Question, amendment agreed to.

Clause 20, as amended, agreed to.

[Amendment No. 77 not moved.]

Clauses 21 and 22 agreed to.

Clause 23 [Transfer of staff in consequence of arrangements under Part I]:

Photo of Lord Bach Lord Bach Government Whip

moved Amendment No. 78:

Page 11, line 27, leave out from ("any") to ("have") in line 28 and insert ("directions about consultation given by the appropriate Minister").

On Question, amendment agreed to.

Clause 23, as amended, agreed to.

Photo of Lord Bach Lord Bach Government Whip

moved Amendment No. 79:

After Clause 23, insert the following new clause--

:TITLE3:PROVISION FOR THE PROTECTION OF CHILDREN

(".--(1) The Protection of Children Act 1999 ("the 1999 Act") shall have effect as if the Service were a child care organisation within the meaning of that Act.

(2) Arrangements which the Service makes with an organisation under section 13(1) must provide that, before selecting an individual to be employed under the arrangements in a child care position the organisation--

(a) must ascertain whether the individual is included in any of the lists mentioned in section 7(1) of the 1999 Act, and

(b) if he is included in any of those lists, must not select him for that employment.

(3) Such arrangements must provide that, if at any time the organisation has power to refer a relevant individual to the Secretary of State under section 2 of the 1999 Act (inclusion in list on reference following disciplinary action etc.), the organisation must so refer him.

In this subsection "relevant individual" means an individual who is or has been employed in a child care position under the arrangements.

(4) In this section "child care position" and "employment" have the same meanings as in the 1999 Act.").

On Question, amendment agreed to.

Clause 24 [Interpretation of Part I]:

Photo of Lord Bach Lord Bach Government Whip

moved Amendment No. 80:

Page 11, leave out lines 39 and 40.

On Question, amendment agreed to.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Parliamentary Under-Secretary, Home Office

This amendment is consequential to Amendment No. 49 and the amendments to Clause 24 are consequential on the creation in Clause 9 as amended of a generic category of hostels, as we have already discussed. I beg to move.

On Question, amendment agreed to.

Clause 24, as amended, agreed to.

Clause 25 agreed to.

Photo of Lord Bach Lord Bach Government Whip

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at three minutes past eleven o'clock.